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constituted the commune. If M. Thiers recognized, as he unquestionably did, the right of these men to overthrow a settled government of a fifth of a century, he certainly cannot claim that they are felons now for attempting to overthrow a government not a month old.

Rebellion being only a political offense, it follows prima facie that every insurgent engaged in rebellious warfare has committed no extradition crime, and every act done in the bona fide prosecution of that warfare, though shocking in itself, is but an offense against the state. Were the burning of the Tuilleries, the slaughter of the archbishop of Paris and the other hostages, the destruction of the public buildings and the firing of the city, acts done in the bona fide prosecution of this warfare? Horrible as these acts undoubtedly were, it is not impossible to suppose that they may have been resorted to for the same reasons that kindred measures have been frequently resorted to in international wars, viz.: for reprisal or for strategical purposes.

Again, the commune was for nearly three months the de facto government of Paris, and exercised the attributes of sovereignty. It waged war, levied armies, held elections, made laws, collected taxes and contracted loans. Now, suppose that the murder of the hostages, or any or all of the many horrible acts done, were done in obedience to or furtherance of the commands of this de facto government, would this remove them from the category of ordinary crimes and give them the character of political offense? If yes, then the perpetrators of them are clearly not liable to extradition. That there was no sufficient political motive for the acts does not affect the question. We have no right to investigate the motive, so soon as it is established that the commune was a de facto government, and that these crimes were committed in obedience to the orders of that government.


For many years there have been but two ways in which the citizen could acquire title to lands; first, by grant; second, by such long possession that a grant should be conclusively presumed, or as it is commonly called, adverse possession. In most, probably all, communities, the length of time necessary to establish this presumption is fixed by statute. But within a comparatively recent period, attempts have been made in the courts, based upon strong and apparent equities, to evade the statutes of limitation in this respect, and give force to the agreements of parties in regard to boundary lines, and to their long continued occupation of premises in a particular manner, but for less than the statutory period. It may be useful to examine these cases. We will examine the question of location, fixed, first, by mere acquiescence; second, by specific agreement; and third, by equitable estoppel.


The earliest case in this state is Jackson v. Bowen, 1 Caines, 363, A. D. 1803. It was decided that an adverse possession of more than twenty years was a bar to a recovery in ejectment. The court remarked that if a man was mistaken in respect to his title, but, under circumstances showing no suspicion of imposition or ignorance, acquiesced in a possession by another in hostility to it, for the length of time shown in this case, he ought to be concluded. That length of time in this case was thirty-six years.

In Jackson v. Dysling, 2 Caines, 197, A. D. 1804, the plaintiff's lessor and the defendant's predecessor had forty years before employed two surveyors to run a line between them, and the defendant's predecessor by parol agreed to remove his fence to the line which the surveyors found, but there was evidence of a subsequent parol agreement, between the plaintiff's lessor and the defendant, in effect rescinding that agreement. This second agreement was, that if a suit between Klock, defendant's predecessor, and Wills, should be decided in favor of Klock, the defendant was to give up possession without suit; but if Wills prevailed, the plaintiff's lessor was to abandon his claim. No evidence as to the event of that suit was given. Judge Spencer thought the first parol agreement binding, but held it rescinded by the second; that the plaintiff was bound to show the result of that suit; but he held the acquiescence of forty years to be conclusive in favor of the defendant. Judge Livingston held the first agreement invalid, because it was not acted on, but agreed with Spencer as to the acquiescence. Judge Thompson held the first agreement not affected by the statute; that the second agreement had nothing to do with the case as it stood, or that the defendant should have chosen the result of the suit; and that the plaintiff was entitled to recover. Judgment of nonsuit.

In Jackson v. Vedder, 3 Johns. 8, A. D. 1808, it was held, that, where a partition had been made, with a survey and a map, and possession had been taken accordingly and held for forty years, the parties were concluded from contesting the correctness of the actual location.

In Jackson v. Diefendorf, 3 Johns. 269, A. D. 1808, it was held, that, where a location had been made under a deed and survey, and undisturbed possession held accordingly for thirty-eight years, it should prevail, although subsequently made to appear inaccurate.

In Jackson v. Ogden, 7 Johns. 238, A. D. 1810, the grant was uncertain and ambiguous as to location, but there had been an acquiescence of seventeen or eighteen years, during which the land had been cultivated and become valuable. The plaintiff also had purchased under defendant's title, taking a deed recognizing the lines thus located. A majority of the court held this to be conclusive. But Judge Van Ness dissented, holding that the grants conferred no

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title on the defendant, and that such a length of possession was not sufficient to make title. He says, at page 245: "The extent which we have hitherto gone is, that when two persons already having a title have settled the line of division between them, or when one having title has made an actual location, according to what he supposed to be his true line, and his neighbors have acquiesced in such location for a considerable length of time, the boundary thus established shall remain undisturbed. But in this case my brethren go greatly beyond the principle of our former decisions."

In Jackson v. Douglass, 8 Johns. 367, A. D. 1811, where there was no uncertainty as to the true location of two adjoining lots of land, the single fact that one of the plaintiff's lessors, eight years before, had pointed out a mistaken line, which was fenced accordingly, was not sufficient to conclude the plaintiff.

In Jackson v. Gardner, 8 Johns. 394, A. D. 1811, it was held, that, where A. voluntarily surrendered a lease and took a new lease, and afterward claimed under the old lease, he could recover no more land than what he could prove with absolute certainty was covered by the old lease; especially after the premises claimed had been in possession of another for sixteen years, who had made valuable improvements. In Stuyvesant v. Dunham, 9 Johns. 61, A. D. 1812, there was a crooked fence between the parties, which the plaintiff proposed to the defendant to straighten. Accordingly, the plaintiff employed a surveyor, who, to the knowledge of the defendant, and without objection on his part, ran a straight line. The plaintiff removed the fence to this line, and the defendant pulled it down. The plaintiff brought trespass. The defendant showed that he and his ancestors had been possessed of the locus in quo for more than twentyfive years, and that during all that time the crooked fence had been the boundary. Also, that before the plaintiff's removal of the fence he objected to it. The plaintiff was defeated.

In Jackson v. Smith, 9 Johns. 100, A. D. 1812, it was held that where a survey was made by the direction and under the observation of the grantee, he cannot, after the lapse of twenty-six years, vary the location. The grant in question was "for the use of the gospel," but the court do not seem to lay any stress on the peculiar sacredness of the purpose.

In Jackson v. McCall, 10 Johns. 377, A. D. 1813, it was proved that the immediate predecessor of the lessor of the plaintiff had repeatedly confessed that he was present when the line was run by the king's surveyors, and that the line set up by the defendant was the one he referred to. This line had been recognized on both sides for forty-one years. Held, conclusive against the plaintiff.

In Jackson v. Van Corlear, 11 Johns. 127, A. D. 1814, the parties had made a new survey, and agreed on the line run thereon as the true boundary. Positive acts of acquiescence were shown, and after

nineteen years the line thus established was held conclusive. But this was expressly placed on the ground of the agreement.

In Jackson v. Freer, 17 Johns. 29, A. D. 1819, the proprietors of the patent had partitioned the same by actual survey, and the lot in question had been improved more than twenty years, and the defendant had possessed it fourteen years. A verdict for defendant was sustained. The decision was placed on the ground of the original agreement.


In Rockwell v. Adams, 7 Cowen, 761, A. D. 1827, action of replevin, tried in 1825, it does not appear how long the acquiescence had been. The lands were wild, and no occupation was shown except cutting of timber, and there had been no agreement as to the line. But the court held that where the line has been acquiesced in for a great number of years, by all the parties interested, it is conclusive evidence of an agreement to that line; citing Jackson v. Bowen, Jackson v. Vedder and Jackson v. Diefendorf, and adding, "In each of these cases erroneous locations had been made, and they had been acquiesced in (not with a full knowledge that they were erroneous, but under a belief that they were correct), for from thirty to forty years." The court also hold that an actual practical location will control, although the party does not know that its effect will be to give him less land than he would otherwise be entitled to, and that there need be no express agreement to abide by the line." And the court then adopt and sanction Van Ness' dissenting opinion in Jackson v. Ogden as the true rule. The verdict for defendant was set aside. The action was tried again in 1828 (6 Wend. 467, A. D. 1821), eleven years acquiescence was shown. The plaintiff had a verdict. Chief Justice Savage said the question was the same as in 7 Cowen, adopted the law there laid down, and denied a new trial. From this decision error was brought, and the case came up again in 1836, before the court of errors (16 Wend. 285), and this is the starting point back to which all subsequent decisions go. Chancellor Walworth laid down this rule: "Where there can be no real doubt as to how the premises should be located, according to certain and known boundaries described in the deed, to establish a practical location different therefrom, which shall deprive the party claiming under the deed of his legal rights, there must be either a location which has been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations in relation to real estate; or the erroneous line must have been agreed upon between the parties claiming the land on both sides thereof; or the party whose right is to be thus barred must have silently looked on and seen the other party doing acts, or subjecting himself to expenses, in relation to the land on the opposite side of the line, which would be an injury to him, and which he would not have done if the line had not been so located, in which case, perhaps, a grant might

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be presumed within the twenty years." Senator Maison in a long and elaborate opinion reviews all the cases, and concludes that possession for less than twenty years had never been held a bar, except in three cases, namely: Ogden, Van Corlear and Gardner. He lays down the rule "that where the boundaries in the deed are clear and unambiguous, and the land thereby described can be easily, and without doubt or conjecture, ascertained, no acquiescence or recognition, however unequivocal or often repeated, can have the effect of depriving the party of his possession of land, unless that acquiescence be continued in for at least twenty years." He continues: "When lands have been located, and such location acquiesced in for any time less than twenty years, either with or without agreement, and during the continuance of such acquiescence, with the knowledge and assent of the party, but without objection, buildings are erected and improvements made on the land thus possessed, the owner of the fee will, nevertheless, at law, be entitled to recover his land, but the party building or improving is not remediless; full and perfect relief and protection is afforded him in chancery," | namely, by a perpetual injunction against the action at law. A new trial was granted with but one dissenting voice.

Intermediate 6th Wendell and 16th Wendell, the case of McCormick v. Barnum, 10 Wend. 104, was decided in 1833. Here it was held that an owner of land was bound by a division line, recognized by his surveyor as correct, where the owner has given deeds in conformity to a map and field book made by the surveyor, and no efficient attempt is made for twentytwo years to correct the line. Also, Kipp v. Norton, 12 Wend. 127, in 1834, in which mere acquiescence for five years was held inconclusive. Also, Dibble v. Rogers, 13 Wend. 536, in 1835, in which the court held an acquiescence of twenty years conclusive.

We next run against Clark v. Wethey, 19 Wend. 320, A. D. 1838. This case decided that where, in a description in a deed, course, distance and monument are given, the premises must be located according to the deed, and all parol evidence of the intent, acts and declarations of the parties, going to establish a different location, is inadmissible as contradicting or varying the deed, unless a possession be shown under claim of title for such a length of time as will bar a recovery in an action of ejectment. If, however, doubt or uncertainty exist, owing to the vagueness or obscurity of the description, or the decay or destruction of the monument, such evidence is admissible in aid of the deed. An actual location by agreement different from the deed will be obligatory. Judge Cowen says the defense of title by acquiescence for less than the statutory period is in the face of the statute of frauds, and also contravenes the doctrine of parol evidence. It would seem at first sight that Judge Cowen does not exactly know what to do with Adams and Rockwell, nor fully understand on what

ground the reversal was there put, but inasmuch as the supreme court were reversed, he himself has no compunctions about "going back" on the doctrine overruled. On a closer examination we do not see that his doctrine differs from that of the court above. The doctrine of "oral conveyance" seems to have been "laid," perhaps stunned, by Judge Cowen's tremendous and unanswerable onslaught, until 1853, when it "walked" again in Clark v. Baird, 9 N. Y. 183. This case decided, that, where a grantor at the time of the execution of the deed put the purchaser in possession, and pointed out the boundaries, but the boundaries so pointed out embraced land not included in the deed, occupation with the consent of the grantor for a less period than that required by statute to bar a right of entry gave the purchaser no title to the lands not covered by the deed. Judge Cowen's doctrine is expressly sustained.

Down to this time the conclusiveness of acquiescence had been based upon the notion that it was evidence of a parol agreement establishing the line. But this idea was exploded, in 1857, in Baldwin v. Brown, 16 N. Y. 359, which put the doctrine on the true ground, namely, that the acquiescence is conclusive evidence that the location is correct. It became material to decide this in answer to the argument that where the location was erroneous no bar could be inferred, because an agreement founded on a mutual mistake of facts is not obligatory. But the remark that "there may be cases in which an express agreement recognizing an erroneous boundary will conclude a party; as where the other party, acting upon the faith of such agreement, has made expensive improvements, the benefit of which will be lost to him if the line is disturbed," seems obiter. Acquiescence of more than forty years was shown in this case, and the court say: "The plaintiff is precluded, on principles of public policy, from setting up or insisting upon a line in opposition to one that has been steadily adhered to, upon both sides, for more than forty years." Judge Cowen's doctrine was also approved in Terry v. Chandler, 16 N. Y. 358, A. D. 1857.

In Reed v. Farr, 35 N. Y. 113, A. D. 1866, which was a case of practical location and acquiescence for more than twenty years, the case of Baldwin v. Brown was followed and approved, and its reasoning adopted.

In the same year the question was reviewed in a learned and exhaustive opinion, in Hubbell v. McCulloch, 47 Barb. 287. The plaintiff alone, more than twenty years before, ran an erroneous line through woods, on uncultivated and unimproved lands, having previously been told by the defendant that the defendant would abide by the line as he should find it, and having subsequently described it as run to the defendant, but the defendant not having assented to it, and it not being fixed or adopted. There being no adverse holding proved, this was held not to amount to a practical location, because there was no original agreement of minds, and no subsequent acquiescence

except silence. The court say: "There has been in the early cases a good deal of confounding of possessions that began adversely, with this new method of getting round the statute of frauds, now called 'practical location;' but it is time that possession begun adversely, and possessions claimed to have begun under practical location, if there is any difference, should be in some way distinguished." The court find the origin of "practical location" in an acquiescence between the parties in a line known and understood by them, of such a length of time as to be identical with "time immemorial," or "time out of memory." "Rather than disturb such an ancient line, it was the policy of the law to presume a grant."

In Reed v. McCourt, 41 N. Y. 441, A. D. 1869, it was held that a parol assent as to the location of a boundary fence, and the actual erection of the fence, followed by mutual occupation and acquiescence for a few months, is not sufficient to change the true line, and that "scarcely less than twenty years would effect such change.


The substance of these authorities on the point of acquiescence seems to be this:

Where the description of the premises in a deed is definite, certain and unambiguous, no extrinsic evidence is admissible to show a different location, unless a possession be shown under claim of title for such a length of time as to bar a recovery in ejectment. If, however, the description is vague, obscure or ambiguous, or the monuments referred to have become decayed or destroyed, such evidence is admissible in aid of the deed. (To be continued.)

No. IV.


The earliest decisions regularly reported in this state, were those from the April term, 1790, to the November term, 1795, inclusive, which were published in one volume by Richard S. Coxe, in 1816. The legislature had provided, in 1806, that a reporter should be annually appointed by joint ballot of the two houses, whose duty it should be to collect and prepare for publication the decisions of the supreme court, and deliver them to the printer of the state laws, who was directed to print the same with the state laws each year. The decisions so printed with the laws from 1806 to 1813, were afterward collected into two volumes by W. S. Pennington, one of the justices of the supreme court.

In February, 1818, Samuel L. Southard, one of the justices of the court, received the appointment of reporter, and reported the decisions from the February term, 1816, to the May term, 1820, in two volumes. In March, of the last named year, the term of office of the reporter was extended to five years, and his salary fixed at $200 or $250. In 1821, Wi liam Halstead, Jr., succeeded Mr. Southard, and held

the office until 1831. He reported the decisions during that period in seven volumes, including in the first volume the decisions from 1796 to 1799. He was succeeded by James S. Green, who reported in three volumes the cases from the November term, 1831, to the end of the November term, 1836.

With the February term, 1837, Josiah Harrison began the duties of law reporter, and reported the cases to the end of the September term, 1842, in four volumes the last being very thin, and containing an appendix of an alphabetical table of all cases reported in the twenty-two volumes of New Jersey reports then issued. Mr. Harrison was succeeded by Robert D. Spencer, who began with the November term, 1842, and ended with the July term, 1846, having issued one volume. He was followed by A. O. Zabriskie, who reported the cases till the end of the March term, 1855, in four volumes. Andrew Dutcher followed, and reported in five volumes the cases both in the supreme court and court of errors and appeals to 1862.

Peter D. Vroom, the present law reporter, began with the June term, 1862, and has thus far issued four volumes, bringing the cases in both supreme court and court of appeals down to the June term, 1869. The several foregoing reports make up the series cited as New Jersey Law Reports, now numbering thirty-three volumes.

By an act passed in 1832 the appointment of a chancery reporter was authorized, who was to hold office for five years. The chancery reports were published separately from the law reports. A volume of reports was not issued under this provision until 1838, although the cases had been printed annually by the state. In that year N. Saxton published one volume containing the decisions of Chancellor Vroom from 1830 to the July term, 1832. In 1842 Henry W. Green, having been appointed chancery reporter, issued the first volume of his reports, commencing with the January term, 1838, leaving an interval of about five years between Saxton's reports and his own. He, however, promised to collect and publish the cases during that interval, and did so in his second and third volumes. He published three volumes, ending with the January term, 1845. George B. Halstead reported in four volumes the cases from the April term, 1845, to the end of the June term, 1853. John P. Stockton continued the cases in three volumes down to 1858; Mercer Beasley thence down to 1861, in two volumes; Thomas N. McCarter to 1856, in two volumes; and C. E. Green down to the November term, 1870.


The first volume of reports published in this state, and the second published in the country, was the first volume of Alexander J. Dallas, issued in 1790, and containing cases in the supreme court, court of oyer and terminer, court of common pleas and the high

court of errors, between September, 1754, and December, 1789. The second volume includes cases decided in the federal court of appeals in 1781, 1783 and 1787; in the high court of error and appeals in 1792–1795; in the supreme court from 1789 to 1790, together with some prior detached cases; in the common pleas from August to December, 1790; in the supreme court of the United States from April, 1790, to August, 1793; and in the circuit courts of the United States from April, 1792, to 1798. The third and fourth volumes contain cases in the United States supreme court from 1794 to 1800, and the state, supreme and other courts decisions down to 1806. The series numbered four volumes.

In 1800 Alexander Addison, then president of the courts of common pleas of the fifth circuit, reported one volume of cases in these courts, and in the high court of errors and appeals, between 1791 and 1799, including in the volume a large number of his charges to grand juries.

Peter A. Browne published, in 1811 and 1815, two volumes of cases adjudicated in the court of common pleas of Philadelphia, between 1806 and 1814.

The reports cited as Yeates' reports were published in 1817-1819, in four volumes, by Charles Smith, from the manuscripts of Jasper Yeates, one of the supreme court justices, who had prepared them for the press. These volumes contain the decisions of the supreme court from 1791 to 1808, with a few nisi prius and circuit court cases.

In 1808, Horace Binney began a series of reports, which was concluded in six volumes in 1815, and contained the decisions of the supreme court from 1799 to 1814.

In 1818, Thomas Sergeant and William Rawle, Jr., began the publication of a series of reports of the supreme court decisions, commencing at the termination of Binney's reports in 1814, and terminating with the September term, 1828. Their reports numbered seventeen volumes. William Rawle continued to report the decisions of the supreme court for the eastern district until 1835, in five volumes, when he was followed by Thomas J. Wharton, who reported the cases in that district down to 1841, in six volumes.

The cases in the middle, southern and western districts, from 1829 to 1832, were reported by William Rawle, Charles B. Penrose and Frederick Watts, in three volumes, cited as Pennsylvania Reports, or Penrose and Watts' Pennsylvania Reports. From 1832 to 1840 the decisions of the supreme court in these three districts were reported by Frederick Watts, in ten volumes.

In 1831 John W. Ashmead published a volume of cases decided in the Philadelphia common pleas, quarter sessions, etc.; and John Miles published, in 1836-❘ 1842, two volumes of the decisions of the district court of Philadelphia, from 1835 to 1840.

Frederick Watts and Henry J. Sergeant began with the May term, 1841, of the supreme court, and

issued a series of nine volumes, closing with the December term, 1845. The last volume contains a valuable index to the whole nine volumes.

The reports heretofore noticed were all the results of private enterprise, the state not having appointed a reporter, but in 1845 provision was made for the appointment of a reporter by the governor, to hold his office for five years; to report not to exceed two volumes a year, of not less than five hundred and fifty pages, bound in law calf, and to sell them at a price not to exceed four dollars a volume. It was also prescribed that no minority opinion should be reported; and that the title of the reports published under the provisions of the act should be "Pennsylvania State Reports." Robert M. Barr received the appointment. He began with the cases of the May term, 1845, and ended his series with the May term, 1849. He issued ten volumes, known and cited as the first ten of the Pennsylvania State Reports. It may be well enough to mention here that when counsel wish to refer to this series, they should cite "Pennsylvania State Reports," as the reports of Watts and Penrose are known as the "Pennsylvania Reports."

Mr. Barr died about the time of the publication of his tenth volume-1849-leaving a large amount of materials intended for further numbers. This material was arranged by his friend J. Pringle Jones, and published with the consent of the governor, for the benefit of his family. This material filled two volumes, bringing the cases down to the December term, 1849. George W. Harris was appointed successor to Mr. Barr, and reported the cases to 1855, in twelve volumes, numbered in the series 13-24.

James Hepburn was next appointed, but died after he had partly prepared a volume for the press. Joseph Casey succeeded him and finished his incomplete volume. Casey reported, in twelve volumes, (25-36 Pa. St.) the cases down to 1860. Robert E. Wright succeeded, and continued the cases to 1865, in fourteen volumes.

The present state reporter - Mr. P. Frazer Smith succeeded Mr. Wright, and has reported the decisions from the October term, 1865, to and including the January term, 1870, in fourteen volumes, the last being volume 64, of the state series.

Besides these supreme court reports, there are the following miscellaneous reports:

Frederick C. Brightly published, in 1851, decisions at nisi prius, in Philadelphia, from 1809 to 1851. Many of the cases were elaborately annotated.

Benjamin Grant published, in 1857-64, as an individual enterprise, three volumes of cases in the supreme court. These reports include cases between 1852 and 1863. Alden's condensed reports, in three volumes, contain cases between 1754 and 1814. In 1851 A. V. Parsons, one of the judges of the court of common pleas for Philadelphia, published one volume of select cases in equity, decided in his court between 1841 and 1850. The Philadelphi

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